1 ROBBINS ARROYO LLP
[Pages:26]Case 3:17-cv-01301-AJB-WVG Document 1 Filed 06/26/17 PageID.1 Page 1 of 24
1 ROBBINS ARROYO LLP
BRIAN J. ROBBINS (190264) 2 KEVIN A. SEELY (199982)
3
ASHLEY R. RIFKIN (246602) STEVEN M. MCKANY (271405)
4 600 B Street, Suite 1900 San Diego, CA 92101
5 Telephone: (619) 525-3990
Facsimile: (619) 525-3991
6 E-mail: brobbins@
kseely@
7
arifkin@
smkany@
8
9
LOCKRIDGE GRINDAL NAUEN P.L.L.P. REBECCA A. PETERSON (241858)
10
ROBERT K. SHELQUIST 100 Washington Avenue South, Site 2200
11 Minneapolis, MN 55401 Telephone: (612) 339-6900
12 Facsimile: (612) 339-0981
E-mail: rkshelquist@
13
rapeterson@
14 Attorneys for Plaintiff
15
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
16
VLADI ZAKINOV, Individually and on
) Case No.
'17CV1301 AJB WVG
17 Behalf of All Others Similarly Situated, )
) CLASS ACTION COMPLAINT FOR:
18
Plaintiff,
)
v.
) (1) NEGLIGENT
19
) MISREPRESENTATION;
BLUE BUFFALO PET PRODUCTS, ) (2) VIOLATIONS OF THE
20 INC, a Delaware corporation,
) CALIFORNIA CONSUMER LEGAL
) REMEDIES ACT;
21
Defendant. ) (3) VIOLATIONS OF THE
) CALIFORNIA FALSE
22
) ADVERITSING LAW;
) (4) VIOLATIONS OF THE
23
) CALIFORNIA UNFAIR
) COMPETITION LAW;
24
) (5) BREACH OF EXPRESS
) WARRANTY;
25
) (6) BREACH OF IMPLIED
) WARRANTY; AND
26
) (7) NEGLIGENCE PER SE
)
27
) DEMAND FOR JURY TRIAL
28
Case 3:17-cv-01301-AJB-WVG Document 1 Filed 06/26/17 PageID.2 Page 2 of 24
1
Plaintiff Vladi Zakinov ("Plaintiff"), individually and on behalf of all others
2 similarly situated, by and through his undersigned attorneys, as and for his Class
3 Action Complaint against defendant Blue Buffalo Pet Products, Inc. ("Blue
4 Buffalo" or "Defendant"), alleges the following based upon personal knowledge as
5 to himself and his own actions and investigation by his counsel, including
6 independent testing of the products, and as to all other matters, respectfully alleges,
7 upon information and belief, as follows (Plaintiff believes that substantial
8 evidentiary support will exist for the allegations set forth herein after a reasonable
9 opportunity for discovery):
10
NATURE OF THE ACTION
11
1. Plaintiff, individually and on behalf of all others similarly situated, by
12 and through his undersigned attorneys, brings this class action against Defendant to
13 cause Blue Buffalo to disclose the presence of dangerous substances in its pet food
14 sold throughout the United States and to restore monies to the consumers who
15 purchased the Contaminated Dog Foods (as defined herein) during the time that
16 Defendant failed to make such disclosures.
17
2. Defendant manufactures, markets, distributes, and sells Blue
18 Wilderness Chicken Recipe for Small Breed Adult Dogs; Blue Freedom Grain-
19 Free Chicken Recipe for Small Breed Adult Dogs; and Blue Basics Grain-Free 20 Turkey & Potato Recipe for Adult Dogs (the "Contaminated Dog Foods").1
21
3. The Contaminated Dog Foods contain material and significant levels
22 of lead, which is a carcinogen and developmental toxin known to cause health
23 problems to consumers. Exposure to lead in food builds up over time. Buildup
24 can and has been scientifically demonstrated to lead to the development of chronic
25 poisoning, cancer, developmental, and reproductive disorders, as well as serious
26 injuries to the nervous system, and other organs and body systems.
27
1 Discovery may reveal additional products that also contain unsafe levels of heavy 28 metals and Plaintiff reserves his right to include any such products in this action.
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1
4. Defendant has advertised and sold the Contaminated Dog Foods
2 without any label or warning indicating to consumers that these products contain
3 lead, or these toxins can over time accumulate in the dog's body to the point where
4 lead poisoning, injury, and disease can occur.
5
5. Defendant's omissions are false, misleading, and reasonably likely to
6 deceive the public, especially in the light of Defendant's affirmative representations
7 that imply that the Contaminated Dog Food is healthy and safe. For instance,
8 Defendant claims that the Contaminated Dog Foods contains "LifeSource Bits?,"
9 a claimed "precise blend of antioxidants, vitamins and minerals selected by holistic
10 veterinarians and animal nutritionists that support: Immune system health; Life
11 stage requirements; [and] Healthy oxidative balance." Moreover, each bag of the
12 Contaminated Dog Food declares the food is "Healthy" and "Holistic."
13
6. Nothing could be further from the truth, as the Contaminated Dog
14 Foods' inclusion of an unsafe amount of lead creates a health hazard for dogs.
15 Notably, this is exactly what happened to Plaintiff's dog. Plaintiff's beloved pet
16 dog developed a kidney disease and eventual failure after ingesting the
17 Contaminated Dog Foods. This was a shocking occurrence since the dog was only
18 approximately four years old. Defendant's statements and omissions are false,
19 misleading, and reasonably likely to deceive the public, especially in the light of
20 Defendant's affirmative representations that imply that the Contaminated Dog
21 Foods are healthy and safe.
22
7. Moreover, a reasonable consumer, such as Plaintiff, would have no
23 reason to not expect and anticipate that the Contaminated Dog Food is healthy,
24 holistic, and safe as advertised and marketed by Defendant. Non-disclosure and
25 concealment of lead in Contaminated Dog Foods plus the claims of a "precise
26 blend of antioxidants, vitamins, and minerals" to support healthy pets by
27 Defendant is intended to and does in fact cause consumers to purchase a product
28 Plaintiff and members of the Class (as defined herein) would not have bought had
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1 disclosure been made. As a result of Blue Buffalo's false statements, omissions,
2 and concealment, Defendant has generated substantial sales of the Contaminated
3 Dog Foods.
4
8. Plaintiff brings this action on behalf of himself and all other similarly
5 situated consumers within the United States who purchased the Contaminated Dog
6 Foods, in order to cause the disclosure of the presence of material and significant
7 levels of lead in the Contaminated Dog Foods, to correct the false and misleading
8 perception Defendant has created in the minds of consumers that the Contaminated
9 Dog Foods are safe and healthy for themselves and their families, and to obtain
10 redress for those who have purchased the Contaminated Dog Foods.
11
JURISDICTION AND VENUE
12
9. This Court has original jurisdiction over all causes of action asserted
13 herein under the Class Action Fairness Act, 28 U.S.C. ?1332(d)(2), because the
14 matter in controversy exceeds the sum or value of $5,000,000 exclusive of interest
15 and costs and more than two-thirds of the Class reside in states other than the states
16 in which Defendant is a citizen and in which this case is filed, and therefore any
17 exemptions to jurisdiction under 28 U.S.C. ?1332(d) do not apply.
18
10. Venue is proper in this Court pursuant to 28 U.S.C. ?1391, because
19 Plaintiff resides and suffered injury as a result of Defendant's acts in this district,
20 many of the acts and transactions giving rise to this action occurred in this district,
21 Defendant conducts substantial business in this district, Defendant has
22 intentionally availed itself of the laws and markets of this district, and Defendant is
23 subject to personal jurisdiction in this district.
24
THE PARTIES
25
11. Plaintiff is, and at all times relevant hereto has been, a citizen of the
26 state of California. Plaintiff purchased the Contaminated Dog Foods as the
27 primary food source for his dog, a four-year-year old cocker spaniel-poodle mix
28 named "Coco." Coco experienced kidney failure. Plaintiff spent a significant
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1 amount of money on the Contaminated Dog Foods and treatments for Coco.
2 Plaintiff suffered injury as a result of Defendant's actions.
3
12. As the result of Defendant's deceptive conduct as alleged herein,
4 Plaintiff was injured when he paid the purchase price or a price premium for the
5 Contaminated Dog Foods that did not deliver what it promised. He paid the above
6 sum on the assumption that the labeling of the Contaminated Dog Foods was
7 accurate and that it was safe to feed his dog the food. Plaintiff would not have paid
8 this money had he known that the Contaminated Dog Foods contained an
9 excessive degree of lead. Defendant promised Plaintiff pet food that was safe for
10 his dog to eat but delivered something else entirely, thereby depriving him of the
11 benefit of his bargain. Damages can be calculated through expert testimony at
12 trial. Further, should Plaintiff encounter the Contaminated Dog Foods in the
13 future, he could not rely on the truthfulness of the packaging, absent corrective
14 changes to the packaging and advertising of the Contaminated Dog Foods.
15
13. Defendant is incorporated in Delaware with its headquarters located at
16 11 River Road, Wilton, Connecticut. Through its wholly-owned operating
17 subsidiary, Blue Buffalo Company, Ltd., Defendant operates as a pet food
18 company in the United States, Canada, Japan, and Mexico. Blue Buffalo develops,
19 produces, markets, and sells dog and cat food under the BLUE Life Protection
20 Formula, BLUE Wilderness, BLUE Basics, BLUE Freedom, and BLUE Natural
21 Veterinary Diet lines. It also produces and sells cat litter under the BLUE
22 Naturally Fresh line. Blue Buffalo sells its products to retail partners and
23 distributors in specialty channels, including national pet superstore chains, regional
24 pet store chains, neighborhood pet stores, farm and feed stores, eCommerce
25 retailers, military outlets, hardware stores, and veterinary clinics and hospitals.
26
14. Defendant formulates, develops, manufactures, labels, distributes,
27 markets, advertises, and sells the Contaminated Dog Foods under the Blue Buffalo
28 dog food products brand name throughout the United States. The advertising for
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1 the Contaminated Dog Foods, relied upon by Plaintiff, was prepared and/or
2 approved by Defendant and its agents, and was disseminated by Defendant and its
3 agents through advertising and labeling that contained the misrepresentations
4 alleged herein. The advertising and labeling for the Contaminated Dog Foods was
5 designed to encourage consumers to purchase the Contaminated Dog Foods and
6 reasonably misled the reasonable consumer, i.e., Plaintiff and the Class, into
7 purchasing the Contaminated Dog Foods. Defendant owns, manufactures, and
8 distributes the Contaminated Dog Foods, and created and/or authorized the
9 unlawful, fraudulent, unfair, misleading, and/or deceptive labeling and advertising
10 for the Contaminated Dog Foods.
11
15. The Contaminated Dog Foods, at a minimum, include:
12
(a) Blue Wilderness Chicken Recipe for Small Breed Adult Dogs:
13
14
15
16
17
18
19
20
21
22
23
24
25
(b)
26 Adult Dogs:
27
Blue Freedom Grain-Free Chicken Recipe for Small Breed
28
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1 2 3 4 5 6 7 8 9 10 11 12 13 14
15 Dogs:
16 17 18 19 20 21 22 23 24 25 26 27 28
(c) Blue Basics Grain-Free Turkey & Potato Recipe for Adult - 6 -
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1
16. Moreover, each of the Contaminated Dog Foods includes what
2 Defendant describes as "LifeSource Bits." Defendant claims on the Contaminated
3 Dog Foods' packaging that these "LifeSource Bits" "are a precise blend of
4 antioxidants, vitamins and minerals selected by holistic veterinarians and animal
5 nutritionists that support: Immune system health; Life stage requirements; [and]
6 Healthy oxidative balance."
7
17. Defendant also claims on the Contaminated Dog Foods' packaging
8 that it leads to a "Healthy Immune System Essential vitamins, chelated minerals
9 and important antioxidants help support the immune system" and "Healthy Muscle
10 Development."
11
FACTUAL ALLEGATIONS
12 Lead Is Exceptionally Dangerous When Ingested
13
18. Lead is a metallic substance formerly used as a pesticide in fruit
14 orchards, but the use of such pesticides is now prohibited in the United States.
15 Lead, unlike many other poisons, builds up in the body over time as the person is
16 exposed to and ingests it, resulting in a cumulative exposure which can, over time,
17 become toxic and seriously injurious to health. Lead poisoning can occur from
18 ingestion of food or water containing lead. Acute or chronic exposure to material
19 amounts of lead can lead to severe brain and kidney damage, among other issues,
20 and ultimately cause death.
21
19. The State of California has included lead as a known carcinogen and
22 developmental toxin on the Proposition 65 list, pursuant to the Safe Drinking
23 Water and Toxic Enforcement Act of 1986.
24
20. The FDA has set standards that regulate the maximum parts per
25 billion ("ppb") of lead permissible in water: bottled water cannot contain more than
26 5 ppb of total lead. See 21 C.F.R. ?165.110(b)(4)(iii)(A).
27
28
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